United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE.
the court is an unopposed Motion and Memorandum for Approval
of Attorney Fees Pursuant to 42 U.S.C. § 406(b)
(“§ 406(b)”) filed by plaintiff Steven S.
(“Plaintiff”). Though Plaintiff is the claimant
in this case, the real party in interest to this motion is
his attorney, Sherwood J. Reese (“Reese”) of the
law firm Drew L. Johnson, P.C. The Commissioner does not
oppose the motion, but merely acts in a manner similar to
“a trustee for the claimant.” Gisbrecht v.
Barnhart, 535 U.S. 789, 798 (2002). Having reviewed the
proceedings below and the amount of the fees sought, the
court concludes Reese is entitled to fees under § 406(b)
in the amount of $20, 735.00.
filed his application for disability insurance benefits on
February 8, 2013, initially alleging an onset date of June
22, 2010, then amending that date to February 1, 2008. The
Commissioner denied his application initially and on
reconsideration. Following an administrative hearing, an
Administrative Law Judge (“ALJ”) issued an
opinion finding that Plaintiff was not disabled as of the
amended onset date and, therefore, was not entitled to
benefits. The ALJ found Plaintiff: (1) had not engaged in
substantial gainful activity since the amended alleged
disability onset date; (2) had severe impairments of bipolar
disorder and persistent depressive disorder; (3) but did not
have an impairment or combination of impairments that met or
medically equaled a listed impairment; and (4) that with some
non-exertional limitations, was able to perform a full range
of work at all exertional levels, including his past relevant
work as a construction worker. That decision became the final
decision of the Commissioner on October 3, 2016, when the
Appeals Council denied Plaintiff's appeal.
sought review of the Commissioner's decision by filing a
complaint in this court on November 15, 2016. Plaintiff
alleged the ALJ erred by (1) disregarding a vocational
expert's finding that Plaintiff was limited by his
inability to work without distracting coworkers; (2) failing
to incorporate all of Plaintiff's functional limitations
into the residual functional capacity assessment; and (3)
failing to provide clear and consistent reasons for rejecting
Plaintiff's symptom testimony. He requested remand for an
immediate award of benefits. The Commissioner filed a
response brief, arguing that Plaintiff should not be awarded
benefits outright, but conceding that the prior decision
contained errors and, therefore, proposed a remand for
further administrative proceedings. Plaintiff replied,
maintaining that the only issue appropriate for remand was
the question of benefit calculation because further
proceedings were unnecessary given that the record was
complete as to the dispositive issues in the case.
court agreed and, on January 9, 2018, entered an Opinion and
Order reversing the decision below and, because further
proceedings indeed would serve no useful purpose, remanding
only for the immediate payment of benefits.
filed a Stipulated Motion for Attorney Fees Pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412
(“EAJA”), in the amount of $8, 855.55, which the
court granted on April 9, 2018.
April 30, 2018, the Commissioner awarded Plaintiff $82,
940.00 in back benefit awards. (Pl.'s Mot. for Attorney
Fees, ECF No. 24 (“Motion”), at 2 n.1; Ex. B.) On
June 26, 2018, Plaintiff timely filed the instant petition
for attorney fees under 42 U.S.C. § 406(b) in the amount
of $20, 735.00. The Commissioner does not oppose the motion.
entering a judgment in favor of a Social Security claimant
represented by counsel, a court “may determine and
allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of
the past-due benefits to which the claimant is entitled by
reason of such judgment.” 42 U.S.C. § 406(b)(1)(A)
(2018). A “twenty-five percent contingent-fee award is
not automatic or even presumed; ‘the statute does not
create any presumption in favor of the agreed upon
amount.'” Dunnigan v. Astrue, No. CV
07-1645-AC, 2009 WL 6067058, at *7 (D. Or. Dec. 23, 2009),
adopted 2010 WL 1029809 (Mar. 17, 2010) (quoting
Gisbrecht, 535 U.S. at 807 n.17). A § 406(b)
fee award is paid from the claimant's retroactive
benefits, and an attorney receiving such an award may not
seek any other compensation from the claimant. Id.
Accordingly, when a court approves both an EAJA fee and a
§ 406(b) fee payment, the claimant's attorney must
refund to the claimant the amount of the smaller of the two
payments. Gisbrecht, 535 U.S. at 796.
parties do not dispute that Plaintiff is the prevailing party
in this matter. Additionally, the Commissioner does not
challenge the amount Reese requests as attorney fees.
Nevertheless, because the Commissioner does not have a direct
stake in the allocation of Plaintiff's attorney fees, the
court must ensure the calculation of fees is reasonable to
prevent Drew L. Johnson, P.C. from receiving a potential
windfall. See Gisbrecht, 535 U.S. at 798 n. 6
(“We also note that the Commissioner of Social Security
. . . has no direct financial stake in the answer to the
§ 406(b) question.”).